Bombay High Court
Sanjay Kamalnarayan Swamy vs The Executive Director(2Nd ... on 27 March, 2017
Bench: V.A. Naik
wp1888.09.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1888/2009
PETITIONER: Sanjay Kamalnarayan Swamy,
aged 43 years, occupation terminated
from service, resident of Kashyap Petrol Pump,
Khaparde Plots Paratwada, District Amavati.
...VERSUS...
RESPONDENTS : 1. The Executive Director (2nd Appellate
Authority), Maharashtra State Electricity
Distribution Company Limited, Prakashgarh
4th floor, Anant Kanekar Marg, Station
Road, Bandra (East), Mumbai - 400 051.
2. The Chief Engineer (1st appellate authority)
Maharashtra State Electricity Distribution
Company Limited), Amravati Circle, Akola.
3. The Superintending Engineer, Maharashtra
State Electricity Distribution Company Limited,
Achalpur Division, Achalpur, District
Amravati.
4. P.G. Rajurkar,
The Sub-Establishment Officer/Enquiry Officer
(retired), Joglekar Plots, Dabki Road, Akola.
(Amendment carried out that is name
of R-4 is corrected as per Court's
order dt. 22/1/10.
--------------------------------------------------------------------------------------------------
Shri U.N. Vyas, Advocate for petitioner
Shri A.D. Mohgaonkar, Advocate for respondents
--------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 27.03.2017
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ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioner challenges the order dated
16.10.2006, terminating the services of the petitioner as an Assistant
Engineer as also the order of the Appellate Authorities dismissing the
appeals filed by the petitioner against the order of his termination.
Few facts giving rise to the petition are stated thus : -
The petitioner was appointed by the Maharashtra State
Electricity Distribution Company Limited on 28.7.1989 as a Junior
Engineer. The petitioner was promoted as an Assistant Engineer on
6.11.2004. According to the petitioner, he proceeded on medical leave on
4.10.2005 after handing over the charge of his office at Dharni to
Shri Wankhede, who was working as a Junior Engineer in another office
of the respondent - Company. Time and again the respondents asked the
petitioner to join his duties but the petitioner did not join his duties. The
petitioner sent a telegram on 29.12.2005 to the respondents, stating that
he was on leave in view of his ailment. It was stated in the telegram that
the medical certificates would follow but they were not tendered. After
issuing several communications to the petitioner to join the duties, the
respondent no.3 served a charge-sheet on the petitioner dated 25.5.2006
as the petitioner did not join. The petitioner submitted his reply to the
charge-sheet on 3.6.2006. An Enquiry Officer was appointed and the
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Enquiry Officer held that all the three charges levelled against the
petitioner were proved. The Enquiry Officer held that the petitioner had
unauthorizedly absented himself from duty, the petitioner had left the
headquarters without permission and the petitioner did not obey the
orders of his superiors. After the charges levelled against the petitioner
were held to be proved, after serving a show-cause-notice on the
petitioner, the services of the petitioner were terminated. The petitioner
filed two departmental appeals against the order of his termination, but
without success. The order of the Disciplinary Authority dismissing the
petitioner from service, as also the two orders of the Appellate Authorities
are challenged by the petitioner in the instant petition.
Shri Vyas, the learned Counsel for the petitioner submitted
that the respondent - Company was not justified in terminating the
services of the petitioner on the proof of the aforesaid three charges. It is
submitted that the petitioner had absented himself from duty at the
relevant time as the petitioner was suffering from spondylitis. It is
submitted that though the petitioner had tendered the certificate of a
private medical officer, the respondents did not give any weightage to the
same. It is submitted that the second charge pertaining to unauthorized
absence is wrongfully held to be proved against the petitioner as the
petitioner was required to remain out of Dharni as he was unfit. It is
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submitted that the charge relating to disobedience of the orders of the
superiors only pertains to the orders of his superior directing him to join
the duties and since the said charge is related with the first charge, the
said charge cannot be said to be serious. It is submitted that the
punishment imposed upon the petitioner is shockingly disproportionate to
the act of misconduct committed by the petitioner and since the petitioner
is ready to join his duties, a direction may be issued against the
respondent - Company to impose a lesser punishment on the petitioner.
Shri Mohgaonkar, the learned Counsel for the respondents
supported the action of the respondents. It is submitted by taking this
Court through various documents that are annexed to the affidavit-in-
reply filed on behalf of the respondents that the petitioner was asked time
and again to join the duties but the petitioner neither joined the duties
nor informed the respondents that he was not able to join the duties in
view of a particular ailment. It is submitted that the behaviour of the
petitioner was absolutely casual and irresponsible. It is submitted that the
petitioner had tendered the medical certificate of a private doctor and had
only submitted the copies of the OPD cards which would show that the
petitioner was not admitted in the hospital at any point of time during his
prolonged absence from 4.10.2005 till he was actually terminated. It is
submitted that the petitioner did not make any efforts even during the
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pendency of the departmental enquiry to join the duties and did not
request the respondents in that regard. It is submitted that every
communication issued by the respondent - Company, requesting the
petitioner to join the duties, as he was the incharge of the office of the
respondent - Company at Dharni, was ignored by the petitioner and the
petitioner did not respond to the same. It is submitted that in the
circumstances of the case, specially when the petitioner had left the
headquarters without seeking permission and without informing about
the period for which he desired to remain away from the headquarters, it
cannot be said that the punishment imposed upon the petitioner is
shockingly disproportionate to the act of misconduct committed by the
petitioner. It is submitted that the conduct of the petitioner was
unbecoming of an employee and since all the three charges levelled
against the petitioner were proved the petitioner's services were rightly
terminated.
On hearing the learned Counsel for the parties and on a
perusal of the documents annexed to the petition and the affidavit-in-
reply filed on behalf of the respondents, it appears that there is no scope
for interference with the impugned orders, in exercise of the writ
jurisdiction. This is not a case where the enquiry conducted against the
petitioner was not fair. The enquiry was conducted against the petitioner
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by observing the principles of natural justice. There is no procedural flaw
in the enquiry that was conducted against the petitioner. All the three
charges that are levelled against the petitioner are held to be proved by
the Enquiry Officer. It would now be necessary to point out as to how the
petitioner had misconducted. On 4.10.2005, the petitioner, who was the
incharge of the office at Dharni, proceeded on leave by giving an
application in writing to the same office of which he was the head. The
petitioner handed over the charge of his office to a Junior Engineer, who
was working in some other section of the Company. The petitioner was
asked by the respondents to join his duties time and again. On 2.11.2005
the petitioner was asked telephonically and also in writing by the
respondents to join his duties but the petitioner paid no heed to the said
communication. Again, a telegram was served on the petitioner dated
3.12.2005 asking him to immediately join his duties as the petitioner was
the head of the office at Dharni, but the petitioner did not respond to this
telegram. A second telegram was served on the petitioner on 17.12.2005
but there was no response. Then on 25.12.2005, the petitioner was served
with a communication asking him to join the duties as he was the
incharge of the entire office and the office at Dharni was suffering in view
of the prolonged absence of the petitioner. The petitioner then issued a
telegram for the first time to the respondents on 29.12.2005 that he was
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not medically fit and he would send the medical certificates to the
respondents. Except the said telegram nothing is placed by the petitioner
on record to show that he had sought leave for the absence. There is also
nothing on record to show that the leave of the petitioner was authorized
even for a single day after 4.10.2005, till his services were terminated.
Since the petitioner did not join the duties despite repeated requests,
efforts were continued by the respondents and a communication was
served on the petitioner, dated 3.1.2006 asking him to join the duties. The
petitioner did not respond to the same, as usual. A notice was then served
on the petitioner dated 13.1.2006 asking him to show cause as to why
action should not be taken against him for remaining unauthorizedly
absent for a large number of days. There was no reply from the petitioner
to this notice. Again on 23.1.2006, the respondent - Company asked the
petitioner to join the duties within seven days or else action would be
taken against him but the petitioner neither joined the duties within seven
days nor replied to this communication. On 30.1.2006, the petitioner was
asked to join the duties within 24 hours as an ultimatum, but the
petitioner did not join. Left with no other alternative, as the office of the
respondent - Company at Dharni was neglected and was suffering to a
great extent due to the unauthorized absence of the petitioner, the
respondents served a charge-sheet on the petitioner on 25.5.2006. The
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petitioner replied to the charge-sheet and the Enquiry Officer, on an
appreciation of the material on record, held that all the three charges
levelled against the petitioner, one of remaining unauthorizedly absent
from duties indefinitely from 4.10.2005, the second in regard to leaving
the headquarters without permission and third of disobeying the orders of
the superiors, were held to be proved. The conduct on the part of the
petitioner clearly showed that the petitioner was an irresponsible officer
working with the respondent - Company and considering the gravity of
the charges, the Company terminated the services of the petitioner. In the
circumstances of the case, it cannot be said that the punishment imposed
upon the petitioner is shockingly disproportionate to the act of
misconduct committed by the petitioner. In our view, the punishment
imposed upon the petitioner is an appropriate punishment, as we do not
find anything on record to show that the petitioner was indeed seriously
ill during the relevant time when he had absented himself. No medical
certificates were placed either before the respondents, the Enquiry Officer
or in this Court to show that the petitioner was seriously ill during the
period of his unauthorized absence from duties. The petitioner had really
made the position of the respondent - Company vulnerable by not
responding to the communications of the superior authorities requesting
the petitioner to join the duties. The petitioner did not even have the
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courtesy to reply the communications and inform the respondent -
Company that he suffered from a particular ailment which prevented him
from joining the duties. In the circumstances of the case, specially, when
all the three charges levelled against the petitioner are held to be proved,
it cannot be said that the respondents have faulted in terminating the
services of the petitioner and the punishment is shockingly
disproportionate to the act of misconduct committed by the petitioner.
Since there is no scope for interference with the impugned
orders, we dismiss the writ petition with no order as to costs. Rule stands
discharged.
JUDGE JUDGE
Wadkar
